16:0318(50)CA - AFGE Local 3732 and Transportation, Maritime Administration, Merchant Marine Academy, Kings Point, NY -- 1984 FLRAdec CA



[ v16 p318 ]
16:0318(50)CA
The decision of the Authority follows:


 16 FLRA No. 50
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3732
 Respondent
 
 and
 
 DEPARTMENT OF TRANSPORTATION
 MARITIME ADMINISTRATION
 U.S. MERCHANT MARINE ACADEMY
 KINGS POINT, NEW YORK
 Charging Party
 
                                            Case No. 2-CO-20013
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 the unfair labor practice alleged in the complaint, and recommending
 that it be ordered to cease and desist therefrom and take certain
 affirmative action.  Thereafter, the Respondent filed exceptions to the
 Judge's Decision and the Charging Party filed an opposition to those
 exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommended Order as modified below.
 
    The Judge found that the Respondent violated the Statute when it
 refused to sign the prenegotiation agreement containing the provision
 ordered by the Federal Service Impasses Panel as well as the ground
 rules for negotiations agreed to by the parties.  While the Authority
 agrees with the Judge's conclusion that the parties were not in dispute
 over ground rules other than hours of negotiation, the Authority notes
 that the prenegotiation agreement submitted by the Charging Party to the
 Respondent on October 8, 1981 did not contain the exact terms contained
 in the parties' previous agreement.  Although the prenegotiation
 agreement and the parties' prior agreement did not contain identical
 terms, other documents and testimony in the record reveal that the
 October 8, 1981 prenegotiation agreement included all the ground rules
 agreed to by the parties.  In agreement with the Judge the Authority
 concludes that Respondent violated section 7116(b)(5) by refusing to
 execute it.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the American Federation of Government Employees, AFL-CIO, Local
 3732, shall:
 
    1.  Cease and desist from:
 
          (a) Failing or refusing to comply with the Decision and Order
       of the Federal Service Impasses Panel in Case No. 81 FSIP 77, or
       in any other manner failing or refusing to cooperate with impasse
       procedures and decisions.
 
          (b) Failing or refusing to sign the October 8, 1981
       prenegotiation agreement containing the provision ordered by the
       Federal Service Impasses Panel in Case No. 81 FSIP 77, and the
       ground rules for negotiations set forth in said agreement.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and the policies of the Statute:
 
          (a) Cooperate with the Federal Service Impasses Panel and
       comply with its Decision and Order in Case No. 81 FSIP 77.
 
          (b) Upon request, sign the October 8, 1981 prenegotiation
       agreement containing the provision ordered by the Federal Service
       Impasses Panel in Case No. 81 FSIP 77, and the ground rules for
       negotiations set forth in said agreement.
 
          (c) Post at its business offices and in normal meeting places
       including all places where notices to members are customarily
       posted at the U.S. Merchant Marine Academy, Kings Point, New York
       copies of the attached Notice on forms to be furnished by the
       Authority.  Upon receipt of such forms, they shall be signed by
       the President, American Federation of Government Employees, Local
       3732 and shall be posted by him for 60 consecutive days.
       Reasonable steps shall be taken to insure that such notices are
       not altered, defaced, or covered by any other material.
 
          (d) Pursuant to section 2423.29 of the Authority's Rules and
       Regulations, notify the Regional Director, Region II, Federal
       Labor Relations Authority, in writing, within 30 days from the
       date of this Order, as to what steps have been taken to comply
       herewith.
 
 Issued, Washington, D.C., October 31, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                NOTICE TO ALL MEMBERS AND OTHER EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
 
    WE WILL NOT fail or refuse to comply with the Decision and Order of
 the Federal Service Impasses Panel in Case No. 81 FSIP 77, or in any
 other manner fail or refuse to cooperate with impasse procedures and
 decisions.
 
    WE WILL NOT refuse to sign the October 8, 1981 prenegotiation
 agreement containing the provision ordered by the Federal Service
 Impasses Panel in Case No. 81 FSIP 77, and the ground rules for
 negotiation set forth in said agreement.
 
    WE WILL sign the October 8, 1981 prenegotiation agreement containing
 the provision ordered by the Federal Service Impasses Panel in Case No.
 81 FSIP 77, and the ground rules for negotiations set forth in said
 agreement.
                                       (Activity)
 
    Dated:  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director for the Federal Labor Relations Authority Region II,
 whose address is:  26 Federal Plaza, Room 24-102, New York, NY 10278 and
 whose telephone number is:  (212) 264-4934.
 
 
 
 
 
 
 
 
 
  FOLLOWS --------------------
 
 CISION
    EMPLOYEES, AFL-CIO, LOCAL 3732
                                Respondent
 
    and
 
    DEPARTMENT OF TRANSPORTATION,
    MARITIME ADMINISTRATION
    U.S. MERCHANT MARINE ACADEMY,
    KINGS POINT, NEW YORK
                              Charging Party
 
                                       Case No.: 2-CO-20013
 
    Gay Snyder, Esq.
    Joseph Fallon
    For the Respondent
 
    Alfred Johnson, Jr. Esq.
    James Petrucci, Esq.
    For the General Counsel
 
    Peter J. Hannums, Esq.
    For the Charging Party
 
    Before:  WILLIAM NAIMARK
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute).
 It is based on a first amended charge filed on May 7, 1982 by Department
 of Transportation, Maritime Administration, U.S. Merchant Marine
 Academy, Kings Point, New York (herein called the agency or Academy),
 against American Federation of Government Employees, AFL-CIO, Local 3732
 (herein called Respondent or Union).
 
    Pursuant to a Complaint and Notice of Hearing issued on December 30,
 1982 by the Regional Director for the Federal Labor Relations Authority,
 New York, NY Region, a hearing was held before the undersigned on April
 11, 1983.
 
    The Complaint alleged, in substance, that on or about October 8, 1981
 and thereafter Respondent refused (a) to comply with a Federal Service
 Impasses Panel Decision and Order, Case No. 81 FSIP 77, dated September
 19, 1981;  (b) to execute a written document embodying the agreed upon
 term and provision ordered by the Federal Service Impasses Panel
 concerning ground rules for negotiating a collective bargaining
 agreement-- all in violation, respectively, of Section 7116(b)(6) and
 7116(b)(5) of the Statute.
 
    Respondent's answer, dated January 7, 1983, denied the aforesaid
 allegations and the commission of any unfair labor practices.  As
 affirmative defenses it averred that the Federal Service Impasses Panel
 (a) lacked jurisdiction to issue the Order it did on September 18, 1981;
  (b) issued an Order contrary to 5 U.S.C. 7131 and other provisions of
 Title 5.
 
    Both parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Briefs were filed with the undersigned which
 have been duly considered.
 
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
 
                             Findings of Fact
 
    1.  At all times material herein Respondent has been, and still is,
 the exclusive bargaining representative of all faculty members and
 non-supervisory librarians employed by the U.S. Merchant Marine Academy
 excluding department heads and assistant department heads, members of
 the regimental department and Academy training representatives.
 
    2.  Apart from librarians, the unit includes professors who are
 required to teach 12 hours per week.  They teach during four quarters
 annually from 8 a.m. - 5 p.m., Monday through Friday, with one hour for
 lunch.  The first academic quarter in 1981 began on July 27 and expired
 on October 9 of that year.
 
    3.  The professors are obligated to conduct certain activities both
 within and outside normal duty hours, such as research and scholarly
 activities that result in publications, and to serve as guest lecturers
 or present papers pertaining to their fields of endeavor.
 
    4.  Between 1979 and 1981 the parties herein met to negotiate ground
 rules which would govern their collective bargaining sessions.  In 1979
 they disagreed as to two items:  a reduction in the teaching load of the
 faculty members and the hours of the day during which negotiations would
 take place.  They submitted their dispute in 1979 to the Federal Service
 Impasses Panel which refused to accept jurisdiction on the ground that
 the issue was one of negotiability.
 
    5.  In June, 1980 Respondent and the agency resolved the dispute as
 to the teaching load.  They agreed to a three hour teaching load for the
 first quarter of negotiations.
 
    6.  There was also a disagreement as to the number of members which
 would comprise each negotiating team, and also whether a member could be
 replaced.  The parties finally agreed to reduce each team to four
 members;  and it was understood that replacements could occur under the
 circumstances set forth in the proposed rules agreement (Respondent's
 Exhibit 1).
 
    7.  The parties were in complete disagreement as to the hours during
 which bargaining should be held.  The Union insisted that negotiations
 take place between 10 a.m. and 5 p.m.; that in no event should they be
 after duty hours ended (5 p.m.).  Management proposed that bargaining
 sessions take place from 12:30 p.m. to 6 p.m.
 
    8.  Dr. Howard Beim, professor of chemistry and vice-president of the
 Respondent Union, testified he believed it was understood, and so stated
 by the parties, that they would negotiate for one quarter;  that it was
 hoped the first quarter of negotiations would coincide with the first
 academic quarter;  that the dispute was concerned with the first quarter
 of negotiations, whenever that occurred.
 
    9.  In a letter dated March 10, 1981 Beim wrote Peter J. Hannums,
 chief negotiator for the Academy, in which he stated inter alia:
 
          After reviewing your letter and the Academy's final proposal,
       we do not agree that there are two groundrule issues with which we
       are not in substantive agreement.  There appears to be only one:
       The hours when negotiating sessions will be held during the First
       Quarter of the 1981-82 Academic Year.
 
    10.  Under date of April 15, 1981 Peter J. Hannums, submitted to the
 Federal Service Impasses Panel (hereinafter called the Panel) the issue
 at dispute between the parties, to wit:  "The hours when negotiating
 sessions will be held during the first quarter of the 1981-82 academic
 year."
 
    11.  The Panel rendered its Decision and Order in 81 FSIP 77 (1981),
 dated September 18, 1981, in which it ordered that "The parties shall
 bargain from 12:30 p.m. to 6 p.m. during all academic quarters in which
 negotiations are conducted."
 
    12.  In a letter dated October 8, 1981 /1/ addressed to Kenneth
 Lazara, President of Respondent Union, the Academy, by its Assistant
 Superintendent John H. Lewis, enclosed two copies of the ground rules
 agreed upon by the parties and included therewith the provision re hours
 of negotiation as ordered by the Panel.  (Joint Exhibit 3) Lewis
 suggested they meet on October 14 at 14:30 hours to formally sign the
 prenegotiation agreement.
 
    13.  Lazara telephoned Lewis on October 14 to inform management that
 the Union was seeking advice from its national counsel, and the
 Respondent's official stated further that it was not prepared to sign
 the agreement until such advice was received.
 
    14.  In reply to the foregoing call, Lewis wrote Lazara on October
 15, stating that the meeting on October 14 was cancelled;  that he was
 rescheduling a meeting to sign the prenegotiation agreement on October
 28 at his office.
 
    15.  By letter dated October 19 Lazara advised Lewis that the Union
 was considering the possibility of appealing the Panel's Decision and
 Order;  and he stated that Lewis would be contacted re a meeting as soon
 as a decision has been made by the National AFGE.
 
    16.  Under date of October 21 Lewis wrote Lazara and stated that,
 while he appreciated the Union's desire to seek counsel, five weeks had
 elapsed since the Panel rendered its decision.  Accordingly, he rendered
 the request that the parties meet on October 28 to sign the
 prenegotiation agreement.
 
    17.  Lazara replied in a letter dated October 27 reiterating its
 intention to await word from the National AFGE re a possible appeal from
 the Panel's decision.
 
    18.  Finally, in a letter dated January 28, 1982 Joseph Fallon, chief
 negotiator for Respondent, informed Hannums that Respondent was advised
 not to agree to negotiations past 5 p.m.  /2/ The stated reasons for its
 refusal to negotiate past that hour were:  (a) the Panel went beyond the
 impasse resolution request by issuing guidelines for all quarters,
 whereas they were asked to decide on the first quarter of negotiations;
 (b) the Panel violated "Collective Bargaining Law" in mandating after
 hours negotiations and has no authority to issue such an order.
 
    19.  Beim testified at the hearing herein that the Respondent refused
 to sign the prenegotiation agreement for several reasons.  Firstly, it
 included the Panel's directive to negotiate after 5 p.m. for all
 quarters.  The Union felt that the Panel could not legally require
 bargaining after 5 p.m., and, moreover, the submission was for one
 quarter whereas the directive included all quarters of negotiation.
 Further, Beim stated that there had been no discussion or agreement as
 to the rest of ground rule No. 1 as submitted by management;  that it
 did not contain other provisions to which the parties had agreed.  /3/
 
                                Conclusions
 
    There are two primary and basic issues to be determined herein:  (1)
 whether Respondent's refusal and failure to comply with the Panel's
 Decision and Order in 81 FSIP 77 was violative of Section 7116(b)(6) of
 the Statute;  (2) whether Respondent's refusal and failure to execute
 the prenegotiation agreement containing terms consented to by the
 parties, as well as the provision ordered by the Panel in 81 FSIP 77,
 constituted a violation of Section 7116(b)(5) of the Statute.
 
    (1) In contending that the Panel's Decision and Order should be
 overturned, Respondent makes three principal arguments:  (a) the Panel's
 directive to the parties exceeded the scope of the dispute submitted to
 it for determination;  (b) requiring the parties to meet and negotiate
 after 5 p.m. flouts Section 7103(a)(12) of the Statute which calls for
 the agency and a union to meet at reasonable times in order to bargain
 collectively;  (c) the union representatives can only be required to
 conduct negotiations during duty hours (no later than 5 p.m.) under
 Section 7131 of the Statute.  Accordingly, Respondent insists the
 Panel's Decision and Order was arbitrary and capricious as well as
 illegal.
 
    (a) The basis for the Panel's action in respect to disputes submitted
 to it stems from Section 7119 of the Statute.  Under subdivision (b)
 thereof it is provided that when the resolution of a negotiation impasse
 fails, "either party may request the Federal Service Impasses Panel to
 consider the matter." Subdivision (c)(5)(A) of Section 7119 states as
 follows:
 
          The Panel or its designee shall promptly investigate any
       impasse presented to it under subsection (b) of this section.  The
       Panel shall consider the impasse and shall either--
 
          (i) recommend to the parties procedures for the resolution of
       the impasse;  or
 
          (ii) assist the parties in resolving the impasse through
       whatever methods and procedures, including factfinding and
       recommendations, it may consider appropriate to accomplish the
       purpose of this section.
 
    The Authority's Rules and Regulations, under Section 2471 et seq.
 track the foregoing statutory provisions.  They provide for either party
 to request the Panel to consider the matter where a negotiation impasse
 is not resolved.  Further, the Panel may, under 2471.11(a) take whatever
 action is necessary and not inconsistent with 5 U.S.C. chapter 71 to
 resolve the impasse.
 
    While it is true that the dispute submitted to the Panel concerned
 the hours when negotiating sessions should be held in the first quarter
 of the 1981-82 academic year, I cannot subscribe to the view that the
 Panel's ruling was arbitrary when it directed the parties to bargain
 from 12:30 p.m. to 6 p.m. during all academic quarters.  The basic
 dispute between the Academy and Respondent involved the hours during
 which bargaining would occur.  The impasse which existed resulted from
 the disagreement between the parties as to whether negotiations should
 take place after 5 p.m.  It did not resolve around whether bargaining
 should take place in the first or any subsequent academic quarter.
 
    The statutory language in Section 7119 envisages, as I interpret it,
 that the Panel consider the basic issue and take action to resolve the
 impasse.  In so doing, it seems clear that the Panel may direct a
 resolution which embraces the "matter" in dispute, and it may utilize
 any method it deems necessary so long as it is not inconsistent with the
 chapter.  The Authority's decision in National Aeronautics and Space
 Administration, Headquarters, Washington, D.C., 12 FLRA No. 94 (1983)
 confirms the latitude devolving upon the Panel in this respect.  In the
 cited case the submission to the Panel failed to specifically identify a
 grievance procedure question as an impasse issue.  Nevertheless, this
 grievance procedure was posed by the union as an issue and did
 constitute a dispute between the parties.  The Authority rejected an
 assertion of lack of jurisdiction based on the failure to identify the
 grievance procedure as an impasse issue.  It accepted Judge Scalzo's
 reasoning that a Panel request must be considered in its entirety;  that
 the Panel's authority is not delimited by technical language in the
 request for resolution, but the entire "matter" may be considered and
 determined as appropriate.
 
    The foregoing rationale seems apposite to the case at bar.  The
 direction by the Panel to bargain between 12:30 p.m. - 6 p.m. during all
 academic quarters in which negotiations are conducted is reasonable and
 well within the disputed submission.  At the time of the Panel's
 Decision and Order the first academic quarter was nearly concluded.  It
 would have been manifestly duplicative to require the parties to return
 each quarter for a directive to bargain from 12:30 p.m. to 6 p.m.  I
 deem the resolution of the Panel, insofar as it encompassed all academic
 quarters in which negotiations are conducted, to be within the framework
 of the dispute submitted to it.  Further, that such directive was a
 necessary and integral part of the resolution;  that it was not beyond
 the scope of the submitted scope so as to be an arbitrary decision.
 
    (b) Parties are adjured, under Section 7114(b)(3) of the Statute, "to
 meet at reasonable times and convenient places as frequently as may be
 necessary, and to avoid unnecessary delays." Moreover, under Section
 7103(12) the definition of 'collective bargaining' includes meeting at
 reasonable times.  Respondent Union has concluded that the Panel
 disregarded this law by directing the parties to meet after 5 p.m.  It
 construes the term 'reasonable' as precluding negotiations after that
 hour since duty work terminates at that time.  No determination by the
 Authority in this regard has been brought to my attention.  However, I
 am not persuaded that the directive of the Panel to meet during the
 hours 12:30 p.m. to 6 p.m. runs contrary to the aforesaid statutory
 provisions.  No interdiction is found therein which prohibits bargaining
 after duty hours.  Moreover, I cannot conclude that engaging in
 negotiations one hour beyond 5 p.m. (the expiration of duty) is
 tantamount to meeting at an unreasonable time.  The order of the Panel
 in that respect may place a burden to some extent on the representatives
 engaged in negotiations.  Nevertheless, the extra hour beyond quitting
 time is not imposed upon the Union alone, and I do not view this
 particular inconvenience as a violation of Section 7114(b)(3) of the
 Statute.
 
    (c) It is also stoutly argued by Respondent that requiring the Union
 representatives to negotiate after 5 p.m. violates Section 7131 of the
 Statute.  Under this section the employee representative must be
 allotted official time during negotiations occurring when they would
 otherwise be in duty status.  The Union contends that if their
 negotiators are forced to bargain until 6 p.m., it creates inequality
 between the parties since they are not employed as labor-management
 personnel.  Such a result, it is urged, runs counter to the purpose of
 the Statute aimed at equalizing labor and management.
 
    Despite the possible inequality as stated by the Union, I cannot
 conclude that Section 7131 mandates that negotiating sessions must take
 place during duty hours.  That statutory language bespeaks of granting
 official time to employees representing a union while negotiating a
 collective bargaining agreement during duty hours.  It neither
 explicitly nor implicitly forbids the holding of negotiations after duty
 hours.  To so construe the Statute is an unwarranted extension of its
 literal language, and I find no support in case law or legislative
 history for such a construction.  Thus, I conclude that the Panel's
 directive did not run afoul of Section 7131 of the Statute.
 
    It is expressly provided in Section 7116(b)(6) that it is an unfair
 labor practice for a labor organization to fail or refuse to cooperate
 in impasse procedures and impasse decisions as required by that chapter.
  While Respondent may challenge the Panel's order in an unfair labor
 practice proceeding, it will run afoul of the Statute if said order is
 deemed proper.  In my opinion the Union herein has not justifiably
 refused to abide by the Panel's Decision and Order in 81 FSIP 77 as
 being arbitrary and capricious or contrary to law.  Accordingly, I
 conclude Respondent has violated Section 7116(b)(6) of the Statute.  See
 National Aeronautics and Space Administration, Headquarters, Washington,
 DC, supra;  Florida National Guard, 9 FLRA No. 41 (1982);  Division of
 Military and Naval Affairs, State of New York, Albany, NY, 8 FLRA No. 33
 (1982);  State of Nevada National Guard, 7 FLRA No. 37 (1981).
 
    (2) An obligation is imposed upon parties who are engaged in
 collective bargaining to sign an agreement when they are accord with its
 terms.  Section 7114(b)(5) declares that the duty to negotiate in good
 faith includes the obligation--
 
       if agreement is reached, to execute on request of any party to the
       negotiation a written document embodying the agreed terms, and to
       take such steps as are necessary to implement such agreement.
 
 Then, it is apparent that, as mandated by the Statute, if the parties
 herein reached agreement upon the ground rules for negotiation it is
 incumbent upon each to execute a written instrument embodying such
 rules.
 
    While Union representative Beim testified there had been a dispute
 concerning certain ground rules other than hours of negotiation, i.e.
 teaching load per quarter, the number of negotiators during bargaining
 sessions, and substitution of negotiators, these had been resolved prior
 to the Panel's Decision and Order in 81 FSIP 77.  Further, record facts
 do not support Beim's testimony that the parties had not agreed to all
 ground rules, /4/ or that Article 1 of the prenegotiation agreement did
 not include all provisions to which the parties consented.  The
 prenegotiation agreement submitted by management to the Union on October
 8, 1981 (Joint Exhibit 3), contains the exact terms set forth in
 Respondent's Exhibit 1-- admittedly agreed to by the parties-- except
 for the hours of negotiation as directed by the Panel.  This conclusion
 is supported by Beim's statement, in his letter to management on March
 10, 1981, that there is only one ground rule with which the parties are
 not in substantive agreement:  the hours when negotiating sessions would
 be held.
 
    Accordingly, I am constrained to conclude that the ground rules for
 negotiation, except as to the hours therefor, were agreed to by the
 parties herein.  Based on the record testimony and documents submitted
 herein, I am persuaded that the Academy and the Union had resolved all
 differences other than the hours during which bargaining should take
 place.  Further, I conclude that the October 8 prenegotiation agreement
 included all the ground rules consented to and relied upon by the
 parties, together with the directive by the Panel re the hours for
 negotiation.
 
    Respondent has insisted that it would not sign the prenegotiation
 agreement since it directed that negotiating sessions be held for all
 quarters between 12:30 p.m. and 6 p.m.  However, inasmuch as I have
 concluded that the terms of the ground rules had been agreed upon and
 that the Panel's directive was proper, the Union's refusal to execute
 the prenegotiated agreement was not justified.  A party may not avoid
 its obligations under Section 7114(b)(5) to execute a written agreement
 embodying agreed upon terms.  To do so runs counter to the duty to
 bargain imposed by the Statute.  In sum, I conclude Respondent has
 violated Section 7116(b)(5) of the Statute by refusing to execute the
 prenegotiation agreement as forwarded to it by the agency on October 8,
 1981 and recited in Joint Exhibit 3 herein.  Military Department, State
 of Oregon, Oregon Army and Air National Guard, Salem, Oregon, 8 FLRA No.
 107 (1982).  See also Defense General Supply Center, A/SLMR No. 790
 which, although arising under Executive Order 11491, as amended,
 involved a refusal to bargain by not signing a negotiated agreement
 which the parties agreed to beforehand.
 
    Having found that Respondent violated Section 7116(b)(5) and (6) of
 the Statute by failing and refusing to execute the prenegotiation
 agreement containing the provision ordered by the Federal Service
 Impasses Panel to be included therein, as well as the ground rules for
 negotiation agreed to by the parties, it is recommended that the
 Authority issue the following Order:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and Section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the American Federation of Government Employees, AFL-CIO, Local
 3732 shall:
 
    1.  Cease and desist from:
 
          (a) Failing or refusing to comply with the Decision and Order
       of the Federal Service Impasses Panel in Case No. 81 FSIP 77, or
       in any other manner failing or refusing to cooperate with impasse
       procedures and decisions.
 
          (b) Failing or refusing to adopt and incorporate the following
       language in the October 8, 1981 prenegotiation agreement with the
       Department of Transportation, Maritime Administration, U.S.
       Merchant Marine Academy, Kings Point, New York:
 
          The parties shall bargain from 12:30 p.m. to 6 p.m. during all
       academic quarters in which negotiations are conducted.
 
          (c) Failing or refusing to sign the October 8, 1981
       prenegotiation agreement containing the provision ordered by the
       Federal Service Impasses Panel in Case No. 81 FSIP 77, and the
       ground rules for negotiations set forth in said agreement.
 
          (d) In any like or related manner interfering with, restraining
       or coercing employees in the exercises of their rights assured by
       the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 policies of the Statute:
 
          (a) Cooperate with the Federal Service Impasses Panel and
       comply with its Decision and Order in Case No. 81 FSIP 77.
 
          (b) Adopt and incorporate the following language in its October
       8, 1981 prenegotiation agreement with the Department of
       Transportation, Maritime Administration, U.S. Merchant Marine
       Academy, Kings Point, New York:
 
          The parties shall bargain from 12:30 p.m. to 6 p.m. during all
       academic quarters in which negotiations are conducted.
 
          (c) Upon request, sign the October 8, 1981 prenegotiation
       agreement containing the provision ordered by the Federal Service
       Impasses Panel in Case No. 81 FSIP 77 and the ground rules for
       negotiations set forth in said agreement.
 
          (d) Post at the bulletin boards provided for the posting of
       union material by the U.S. Merchant Marine Academy, Kings Point,
       New York copies of the attached notice on forms to be furnished by
       the Authority.  Upon receipt of such forms, they shall be signed
       by the President, American Federation of Government Employees,
       Local 3732 and shall be posted by him for 60 consecutive days.
       Reasonable steps shall be taken to insure that such notices are
       not altered, defaced, or covered by any other material.
 
          (e) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region II, Federal
       Labor Relations Authority, in writing, within 30 days from the
       date of this Order, as to what steps have been taken to comply
       herewith.
 
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 
    Dated:  October 13, 1983
    Washington, DC
 
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE We Hereby Notify Our Employees That:
 
    WE WILL NOT fail or refuse to comply with the Decision and Order of
 the Federal Service Impasses Panel in Case No. 81 FSIP 77, or in any
 other manner fail or refuse to cooperate with impasse procedures and
 decisions.
 
    WE WILL NOT fail or refuse to adopt and incorporate the following
 language in the October 8, 1981 prenegotiation agreement with the
 Department of Transportation, Maritime Administration, U.S. Merchant
 Marine Academy, Kings Point, New York:
 
          The parties shall bargain from 12:30 p.m. to 6 p.m. during all
       academic quarters in which negotiations are conducted.
 
    WE WILL NOT refuse to sign the October 8, 1981 prenegotiation
 agreement containing the provision ordered by the Federal Service
 Impasses Panel in Case No. 81 FSIP 77, and the ground rules for
 negotiation set forth in said agreement.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce employees in the exercise of their rights assured by the Statute.
 
    WE WILL comply with the Decision and Order of the Federal Service
 Impasses Panel in Case No. 81 FSIP 77 by adopting and incorporating the
 following language in the October 8, 1981 prenegotiation agreement with
 the Department of Transportation, Maritime Administration, U.S. Merchant
 Marine Academy, Kings Point, New York:
 
          The parties shall bargain from 12:30 p.m. to 6 p.m. during all
       academic quarters in which negotiations are conducted.
 
    WE WILL sign the October 8, 1981 prenegotiation agreement containing
 the provision ordered by the Federal Service Impasses Panel in Case No.
 81 FSIP 77 and the ground rules for negotiations set forth in said
 agreement.
                                       (Agency or Activity)
 
    Dated:  By:  (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director of the Federal Labor Relations Authority, Region II,
 whose address is 26 Federal Plaza, Room 24-102, New York, NY 10278 and
 whose telephone number is (212) 264-4934.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Unless otherwise indicated, all dates hereinafter mentioned occur
 in 1981.
 
 
    /2/ The letter did suggest the parties sign off on all other ground
 rules which do not require negotiating past that hour and begin the
 negotiating process.
 
 
    /3/ Beim did testify that Article 1 in Respondent's Exhibit 1 was
 agr